Let’s say Mrs. Smith is starting to lose mental capacity This is now a good time to have an attorney prepare or review the couple’s estate plan. Why? Because Mrs. Smith usually is, or will soon be, no longer able to serve as Mr. Smith’s Executor, Health Care Proxy, and Durable Power of Attorney agent. And, I always recommend that a “spare tire” person be named in the number two slot. So, in Mr. Smith’s legal documents, even if a person is named #2 to Mrs. Smith, that leaves Mr. Smith with only one agent. If Mr. Smith later becomes unable to make his health and business decisions and if “something happened” to Mr. Smith’s only agent, the family will be forced to petition the probate court for a guardianship and conservatorship because neither named agent is capable of performing the job for Mr. Smith. We want to avoid court, which can be very stressful, time-consuming, and expensive. When the ill spouse can no longer do these jobs, the well spouse must update his/her estate planning documents. And, if the ill spouse knows what she is signing, her plan must be prepared/updated, as well.

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Another big issue: Mr. Smith’s Will usually names the Mrs. Smith as the first beneficiary. If Mr. Smith unexpectedly passes away before Mrs. Smith (people tell me this happens about half the time), all of the marital assets will be given to Mrs. Smith causing the loss of her MassHealth benefits paying the nursing home bill. Mrs. Smith can only have under $2,000 in assets. Mrs. Smith’s inheritance must be used to privately pay the nursing home at the rate of approximately $12,000 per month until she has spent down to under $2,000. The solution is a Testamentary Trust embedded into the well spouse’s new Will sheltering the assets and preventing the ill spouse’s loss of public benefits. For more information, jlawma.com or 413-532-1200.